Cases and authorities

CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D WORDS AND PHRASES – “discoverable” – “knows” – “fact”

CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.

CRIMINAL LAW – procedure – judgment on appeal – application to set aside or vary orders – jurisdiction to reconsider appeal – principle of finality – entry of orders – claim that two grounds not addressed in judgment – leave granted – Criminal Appeal Rules, r 50C CRIMINAL LAW – appeal against conviction – charges of (i) conspiracy to import firearm parts, (ii) conspiracy to possess firearm parts and (iii) knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12 month period – whether charge (ii) should have been stayed – whether charge (iii) an aggravated form of charge (ii) – whether charge (ii) a necessary part of charge (i) – whether extended definition of sale should have been left to jury

Police – Arrest without warrant – Where s 99(1) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that police officer may, without warrant, arrest person if police officer suspects on reasonable grounds that person is committing or has committed offence and police officer is satisfied that arrest is reasonably necessary for one or more specified reasons – Where s 99(3) provides that police officer who arrests person under s 99 must, as soon as is reasonably practicable, take person before authorised officer to be dealt with according to law – Where police officer had not formed intention to charge arrested person with offence at time of arrest – Where police officer had not formed intention to bring arrested person before authorised officer to be dealt with according to law at time of arrest – Where arrested person brought claim for damages for wrongful arrest and false imprisonment – Whether arrest unlawful. Words and phrases – "answer a charge for an offence", "arrest", "arrest without a warrant", "as soon as is reasonably practicable", "authorised officer", "dealt with according to law", "false imprisonment", "improper purpose", "intention to charge", "investigation period", "police officer", "power to arrest", "purpose of arrest", "suspects on reasonable grounds". Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 99, 105, 109, 113, 114, 115, 116.

BMW Australia Ltd v Brewster Westpac Banking Corporation v Lenthall Practice and procedure – Representative action – Orders – Where s 33ZF of Federal Court of Australia Act 1976 (Cth) and s 183 of Civil Procedure Act 2005 (NSW) provide that in representative proceeding court may make any order court thinks appropriate or necessary to ensure justice is done in proceeding – Where representative proceedings commenced in Federal Court of Australia and Supreme Court of New South Wales – Where proceedings funded by litigation funders – Where litigation funders entered into litigation funding agreements with small number of group members – Where representative parties in each proceeding applied for common fund order – Whether s 33ZF of Federal Court of Australia Act and s 183 of Civil Procedure Act empower Federal Court of Australia and Supreme Court of New South Wales to make common fund order. Words and phrases – "access to justice", "appropriate or necessary to ensure that justice is done in the proceeding", "award of damages", "book building", "common fund", "common fund order", "distribution of moneys recovered", "equitable sharing of costs", "fair and reasonable to all group members", "free riding", "funding commission", "funding equalisation order", "interests of justice", "litigation funding", "representative proceeding", "risk", "unfunded group members". Civil Procedure Act 2005 (NSW), Pt 10, ss 157, 162, 165, 166, 172, 173, 175, 177, 178, 179, 183, 184. Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33C, 33J, 33M, 33N, 33U, 33V, 33X, 33Z, 33ZA, 33ZB, 33ZF, 33ZJ. Judiciary Act 1903 (Cth), s 79.

FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – contact – adoption plans

COSTS –Party/Party – General rule that costs follow the event – Application of the rule and discretion – costs in relation to an application seeking general access to documents produced in answer to subpoena – whether the cross-claimants in pressing part of the relief sought in the application was so unreasonable as to warrant the payment of costs forthwith – held that the appropriate costs order is that the costs of (and incidental to) the hearing of a motion should be reserved – considered fairer to the parties that the costs be determined on the final determination of the substantive dispute between the parties in the proceedings.

EVIDENCE – Relevance – Expert evidence – s55 of the Evidence Act - where the opinion does not relate to the skills and capacity of the Accused when the events occurred – the evidence if it was accepted, could not rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact in issue in the proceedings

CIVIL PROCEDURE — approval of settlement — by consent — whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity — settlement approved

CRIMINAL LAW – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

FAMILY LAW - Children – Parens patriae jurisdiction –Child under the parental responsibility of the Minister in hospital for nearly nine months – Concurrent Children’s Court proceedings - Orders requiring Secretary to consent to proposed treatment plan to transition child from hospital

SUPPRESSION AND NON-PUBLICATION ORDER –public interest in victims of alleged sexual assaults not being prevented from litigating claims because of fear that principles of open justice will expose them to psychological harm and embarrassment – orders made

PROCEDURE – Contempt – applicant seeking orders that the respondent be found guilty of contempt of court for issuing a subpoena – whether issuing the subpoena was in breach of court orders– burden of proof rests upon the party alleging contempt of court – proof beyond reasonable doubt – criminal standard of proof for civil contempt – contempt must be wilful and not merely casual, accidental or unintentional.

CONTRACTS — Formation — Agreement — Intersection of contract law with succession law — Enforceability of testamentary agreement — Agreement binding and plaintiff entitled to order that it be specifically performed — Standing of plaintiff under UCPR r 7.10(2)(b) to represent the estate for the purposes of this claim accepted — Standing of fourth defendant to resist this claim, accepted upon considerations of procedural fairness and natural justice — Enforceability of testamentary agreement upheld SUCCESSION — Family provision — Claim by adult child — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Extension of time permitted SUCCESSION — Family provision — Claim by adult child — Claim made under Family Provision Act 1982 (NSW) — Whether adequate and proper provision made for the plaintiff — Where the course of the litigation itself over more than a decade, including and especially the amount of outstanding legal fees, has become a paramount factor in determining the material circumstances of the beneficiaries — Where plaintiff alleges that substantially all legal costs incurred are the fault of the first and fourth defendants — Where evidence shows failure of deed of release was substantially of plaintiff’s own making — Where plaintiff’s case has changed substantially over time, including by totally abandoning many claims — Where beneficiaries are in materially similar financial and personal circumstances — Consideration of whether claimant’s costs are permitted to be paid out of the deceased estate — No family provision ordered

ADMINISTRATIVE LAW – administrative tribunals – statutory appeals from administrative authorities to courts – leave to appeal only available for error of law – no error of law identified – leave to appeal refused

PRACTICE AND PROCEDURE – Alleged medical negligence - Whether interrogatories should be administered – Whether leave should be granted to file an amended statement of claim – No point of principle

ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Review of a certificate of a medical assessor of SIRA – Jurisdictional error – Failure to apply the Permanent Impairment Guidelines when determining causation – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Legal unreasonableness – Whether the first defendant’s left hip pathology was caused by the subject accident

CRIME – appeals – appeal against conviction – unreasonable verdict – jury verdicts of guilty for historical sexual offences committed against two complainants – where there were internal inconsistences in the evidence and directly contradictory evidence – unreasonable verdicts – verdict of acquittal entered

EVIDENCE – criminal proceedings – relevance – hearsay – evaluation of unfair prejudice and directions of Court

CRIMINAL PROCEDURE – witness fears for safety – orders made

CIVIL PROCEDURE — cross-vesting — transfer to other Supreme Court — whether transfer to the Supreme Court of Queensland in the interests of justice — where respondent has already incurred significant costs pursuing proceedings in New South Wales — application dismissed

ADOPTION – whether adoption is in the best interests of the child – adoption clearly preferable

CIVIL PROCEDURE — court administration — removal to Court of Appeal — order made pursuant to r 28.2 of the UCPR for the decision of a question of law separately — question of correct approach to demonstrating loss or damage arising from allegedly negligent or misleading valuation in a mortgage transaction — where existence of a conflict in legal authority in relation to determination of the separate question — removal of question into Court of Appeal ordered

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Public policy that contempt should be determined by court whose orders allegedly breached CIVIL PROCEDURE — Hearings — Adjournment — Belated application by defendant for adjournment of contempt hearing pending determination of application for legal aid CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended — Second application — No new facts or facts that could not have been discovered with reasonable diligence at time of first application CONTEMPT — Procedure — Requirement for statement of charge to be drawn with specificity

JUDGMENTS AND ORDERS — enforcement — suspending operation — application for stay of execution of writ of possession of land

PERSONAL PROPERTY – property secured by finance agreement – default entitling bank to seize collateral – bank’s rights under s 123 of Personal Properties Securities Act 2009 (Cth) – declaration and associated orders made

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — No additional cost or delay and no prejudice identified — Leave to amend granted CIVIL PROCEDURE — Directions as to conduct of hearing and joint experts’ conferences — Application seeking direction to limit number of Defendant’s experts on breach of duty — No suggestion of any relevant differences or nuances in experts’ experience or evidence — Defendant limited to calling evidence from no more than two experts on breach of duty CIVIL PROCEDURE — Stay of proceedings — Inherent power — s.23 Supreme Court Act 1970 (NSW) — Discretion as to whether power should be exercised to stay proceeding until plaintiffs consent to interviews with treating doctors — Whether refusal to grant stay would result in unfair trial — Whether declarations should be made that defendant entitled to interview treating doctors — Richards v Kadian (2005) 64 NSWLR 204 applied

PRACTICE AND PROCEDURE – power to transfer proceedings from District Court to Supreme Court – whether in the interests of justice to order that both proceedings be heard together – undesirable for claim for leave under s 151D of the Workers Compensation Act 1987 (NSW) to be heard together with action against solicitors for not bringing claim within time – applications for transfer and joinder refused

REAL PROPERTY – indefeasibility – fraud exception to indefeasibility – Real Property Act 1900, s 42 – defendant and her late de facto partner (‘the deceased”) witness the affixation of a company seal of the corporate vendor to a memorandum of transfer of real property under the Real Property Act – memorandum of transfer registered – the defendant and the deceased thereby become tenants-in-common – but at the time of execution of the transfer, the company had already been deregistered – the defendant and the deceased occupy the property until his death in 2015 – shortly before his death, her tenancy-in-common with the deceased is converted to a joint tenancy – the defendant becomes the registered proprietor of the property by survivorship after his death – the plaintiff, the daughter of the deceased and executrix of his estate, seeks a declaration that the transfer and the later creation of the joint tenancy were void as a fraud upon the National Companies and Securities Commission, in whom the property was vested at the time of the 1986 transfer – whether the defendant was knowingly involved in any fraud associated with the transfer – whether the transfer and the later creation of the joint tenancy are defeasible at the suit of the plaintiff.

CIVIL PROCEDURE — Interim preservation — Appointment of receiver – in relation to a dissolved law practice – where principal proceedings include a claim against the applicant in relation to misappropriated partnership funds – whether a receiver will be appointed practically as a matter of course – whether would be futile to appoint a receiver – whether it would be ruinous to appoint a receiver – application dismissed with costs – not appropriate for a receiver to be appointed as not a proper use of partnership funds and not in the interests of the partnership’s creditors.

PRACTICE AND PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved

CORPORATIONS – winding up – provisional liquidators – application for remuneration for performance of services – where remuneration calculated on time-costing basis – where work performed had necessary connection with the provisional liquidation and powers conferred on provisional liquidators – where remuneration sought is not disproportionate – whether such remuneration should be approved.

EVIDENCE – Expert evidence – whether statements in the report of an expert witness can be admitted as expert evidence – whether statements are based on any particular area of specialised knowledge – where statements are in the nature of advocacy

CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — current proceeding related proceeding pending in the Federal Court — in the interests of justice that current proceeding be determined by the Federal Court

CIVIL PROCEDURE — Pleadings — Amendment — To correct misnamed defendant in application to set aside statutory demand — Whether misnomer or substitution — Where represented defendant had participated in proceedings — No confusion — Section 459G of the Corporations Act — Section 65(2) and (3) of the Civil Procedure Act mean that no infringement of 21-day limitation period — Leave to amend granted. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether application served within 21 days — Course of correspondence between parties by email to solicitors — Defendant’s solicitor agreed to accept service — Consent to electronic service implied – Application to set aside sent by email within 21 days — Solicitor for defendant did not open email until after expiry of 21 days — Where solicitor checking emails for another transaction only — Inference that email came to his notice — Service validly effected — Strike out application dismissed.

CORPORATIONS – winding up – public examination of directors, officers and others – application to set aside examination summonses and orders for production – consequential orders made. COSTS – whether costs orders should be made in respect of application to set aside examination summonses and orders for production.

ASSOCIATIONS AND CLUBS — Racing clubs and associations — Validity of appointment of an administrator under s 24(1)(j) of the Greyhound Racing Act 2017 (NSW) — Interlocutory regime pending determination of validity of appointment – Dispute as to appropriate orders – Proposed orders

COSTS – apportionment of costs – plaintiff’s claim dismissed against the first defendant but successful against the second defendant – whether the defendants’ conduct of the proceedings caused a lengthening of the litigation – whether the defendants’ costs should be assessed together.

ADMINISTRATIVE LAW – alleged jurisdictional error arising from rent increase due to cancellation of rent rebate LANDLORD AND TENANT – whether cancellation of rental rebate under Housing Act 2001 (NSW) requires notice to be given of rent increase under s 41 of Residential Tenancies Act 2010 (NSW) LANDLORD AND TENANT – whether non-payment notice erroneous for inclusion of arrears from previous tenancy which were the subject of a repayment plan PRACTICE AND PROCEDURE – appeal – new point raised in Supreme Court which had not been raised in the Tribunal or the Appeal Panel – relevance of prejudice to defendant

CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – risk of unfair prejudice

CORPORATIONS – unregistered managed investment scheme – winding up – application for directions as to distribution of funds deposited by particular categories of investors PROCEDURE – appeal – civil – application for leave to commence proceedings against companies in liquidation – application for appointment of representative parties – directions as to payments of costs out of common fund

PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment

CONTRACTS – Construction – Interpretation – Dispute concerned payment of a lump sum figure to the plaintiff (“KRM”) under an affiliate contract (the “APA”) between KRM and two online betting companies (“Classicbet” and “Bestbet”, the first and second defendants); the betting companies were initially owned by the third defendant and his father (the “Kays”) but the shares in each of these companies were sold to “Playup” (which now controls Classicbet and Bestbet), leading to a cross claim dispute between Classicbet/Bestbet and the Kays about when the obligation to pay the lump sum to KRM was incurred – Classicbet/Bestbet were required under the APA to give notice to KRM of an actual or proposed change of control of Classicbet/Bestbet, the giving of which notice would trigger a 14 day period in which KRM could opt for the lump sum or continue to receive monthly commissions; whether giving notice of a proposed (as opposed to an actual) change of control was mandatory under the APA or merely permissible – Held: Classicbet/Bestbet were not contractually required to give notice of a proposed change of control, only of an actual change of control; the obligation to pay the lump sum was incurred after completion of the share sale agreements. CORPORATIONS – Directors and officers – Directors’ duties – Duty to act in good faith in the best interests of company and for proper purpose – Classicbet/Bestbet contended that the Kays breached their duties as directors of Classicbet/Bestbet by failing to issue a notice of proposed change of control before completion of the share sale agreements – Held: the APA did not require Classicbet/Bestbet to give notice of a proposed change of control, hence the Kays were not in breach of their duties; moreover, even if they were, Classicbet/Bestbet failed to prove that, had the Kays caused Classicbet/Bestbet to give notice to KRM in April instead of October 2018, KRM would have opted for the lump sum, a fact necessary to establish causation. CONTRACTS – Construction – Interpretation – Classicbet/Bestbet contended that KRM had waived its right to continue receiving commissions after it had elected to take the lump sum – Held: KRM, having opted for the lump sum, was not entitled to commissions after that date, but commissions so received should be offset against the amount of the lump sum owed to it. CONTRACTS – Construction – Interpretation ­­– In calculating the amount of the lump sum, whether the reference in the APA to “the 12 months immediately preceding the date that the option is exercised by KRM” refers to calendar months or 365 days pro rata; in calculating the “average monthly commission”, whether this should include amounts that were earnt during the 12 months (and, hence, payable) or only those amounts actually paid in the 12 months­ – Held: the preceding “12 months” in this context refers to calendar months, not 365 days pro rata, and “paid” in this context should be understood as “payable”. CONTRACTS – Construction – Interpretation – Classicbet/Bestbet contended that cl 6.1 of the respective share sale agreements between themselves and the Kays involved a promise by the Kays to pay Classicbet/Bestbet’s liabilities before the change of control to Playup, whereas the Kays submitted that the promise was made to Playup as the buyer not to Classicbet/Bestbet – Held: the promise in cl 6.1 was made by the Kays to Playup not to Classicbet/Bestbet. CONTRACTS – Construction and interpretation – Parol evidence rule – Prior negotiations – Where the Kays sought to rely on evidence of pre-contractual negotiations in support of their contention that it was not the parties’ intention to make the third defendant liable under the APA to pay his share of the lump sum to KRM, despite the third defendant being a party to the APA – Held: the Kays could not rely on such evidence.

CRIMINAL LAW – guilty plea – sentence – murder – victim impact statement – objective features – objective seriousness – intention to kill – no premeditation and planning – high level violence – aggravation by weapon and victim’s home – mitigation – no criminal record – subjective features – no history of violence – protection of community – remorse – moral culpability and mental disorder – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders

ADMINISTRATIVE LAW – judicial review – prerogative and declaratory relief – s 69 of the Supreme Court Act 1970 (NSW) – whether Appeal Panel had jurisdiction to make orders in relation to rental bond when the bond was not lodged with Rental Bond Authority – ss 175, 187, and 188 of the Residential Tenancies Act 2010 (NSW) – grant of relief by way of prohibition, certiorari or declaration is discretionary – summons dismissed – orders

COSTS – offer of compromise – first defendant accepts an offer of compromise issued under Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.13A in a very small amount (namely $10) – first defendant would ordinarily be liable under r 42.13A for the plaintiff’s costs upon acceptance of the offer of compromise – whether the first defendant can invoke UCPR, r 42.34, and resist the making of any costs order, on the grounds that the amount of the judgment is less than $500,000 and the proceedings could have been brought in the District Court.

COSTS — Party/Party — Bases of quantification — Ordinary basis – order that the defendant pay 90% of the plaintiff’s costs of the proceedings on the ordinary basis – held 10% discount on the costs order appropriate in circumstances where the defendant had been successful on a discrete issue – separate costs order without any discount in relation to the strike-out motion that was not pressed at the hearing.

CRIME – costs – application for certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – where offender charged with 7 counts – where offender is acquitted on 4 counts, convicted on 2 counts and the jury was unable to agree on the remaining count – where credibility of Crown witnesses poor – whether reasonable to institute proceedings

SUCCESSION – family provision – claim by adult son – evidence of difficult relationship between plaintiff and deceased before estrangement – evidence that plaintiff subjected to physical abuse by the deceased during childhood – scope of the deceased’s moral obligation to provide for the plaintiff – where plaintiff has significant financial need – where plaintiff has experienced periods of drug addiction and incarceration – where plaintiff had made past contributions to estate – causes of estrangement – no competing claims on the estate – where deceased had offered to help the plaintiff prior to estrangement

CRIMINAL LAW – application to direct an inquiry or to refer case to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 – whether there appears to be a doubt or question as to sentence – applicant convicted and sentenced for one count of knowingly taking part in the supply of a large commercial quantity of a prohibited drug – applicant was one of four co-offenders – applicant submitted he has a justifiable sense of grievance in the light of a sentence subsequently imposed upon a co-offender – the difference in sentences gives rise to the appearance of a doubt or question – case referred to the Court of Criminal Appeal